Introduction

Protecting the safety of the nation demands not only that we have sufficient hardware and software to project force and communicate securely with our forces, but also a large, well-trained cadre of warriors ready to perform whenever called upon to do so. No one ever became rich wearing the nation’s uniform, however, and servicemembers face economic challenges greater than those faced by most civilians. Most spouses of soldiers, sailors, and airmen must work to make ends meet, or want to do so to pursue their own careers. Yet even in today’s booming economy, finding work can be difficult for a large number of military spouses because of obstacles that states place in the way of their employment.

Those state-law barriers are occupational licensing requirements. Congress has the opportunity, however, to alleviate the economic problems that state licensing laws impose on members of the military, their families, and the armed forces. The nation would be well served with those barriers out of the way.

The Harms Imposed by Occupational Licensing Requirements

Occupational licensing rules have existed in America since colonial days, but they have become a serious problem in America only during the past 60 years.REF Until the 1950s, only 5 percent of workers were licensed, and most of them were employed in professional fields like medicine, the law, and accounting, where licensing makes eminent sense. Since then, however, that number has leapt to more than 1,100 occupations encompassing roughly 30–35 percent of the workforce, particularly in service industries.REF Today, states require licenses for a host of positions—such as ballroom dance instructors, barbers, cosmetologists, florists, interior designers, taxi drivers, travel guides, home entertainment installers, photographers, and turtle farmers—that involve no remote risk to public safety, health, and welfare.REF

Why, then, have we seen this boom in occupational licensing? Not because hiring an unlicensed interior designer puts the public at risk of death or grave bodily injury, and not because licensing is the only way to ensure that photographers have the credentials necessary to perform satisfactorily. No, occupational licensing schemes become law because they create legalized cartels.REF Cosmetologists, for example, would like to band together to limit competition from new entrants into their field who might offer their services at a lower price, but the federal antitrust laws prohibit such combinations to restrain trade.

Accordingly, to eliminate rivalry, competitors persuade the state legislatures to do their dirty work for them by adopting a licensing requirement (that grandfathers them in, of course). The result is a reduction in the supply of a particular service, which thereby increases the price that licensed parties can charge without producing any corresponding increase in the safety or quality of the service provided.REF It’s good work if you can get it.

Aggravating the harms caused by licenses is the frequent reluctance or unwillingness of states to recognize licenses granted in other states. The effect is to force already licensed parties to start their licensing process anew and incur considerable expense in the process.REF That is a particular burden for military spouses. “Thirty-five percent of military spouses work in licensed fields, and they are ten times more likely than civilians to relocate interstate.”REF Any policy that lightens that burden would be a boon to the armed forces.

Protecting the Spouses of Servicemembers from Those Harms

Recently, a bipartisan group of Senators and Representatives—Senators Tom Cotton (R–AR), Jeanne Shaheen (D–NH), and Martha McSally (R–AZ) and Representatives Jim Banks (R–IN) and Susan Davis (D–CA)—decided to take a small step toward eliminating the barriers that those cartels impose on the spouses of servicemembers.REF They introduced identical companion legislation in the Senate and House of Representatives, the Portable Certification of Spouses Act of 2019 (or PCS Act),REF that would nudge the states in the direction of lifting those artificial restraints on competition.

The PCS Act would work in two ways:

• Section 1 deals with the registration of a business. It would deem a spouse to be a resident of a state from which he or she moved to accompany a military spouse. Section 1 would also enable a spouse to use the same state residence as his or her servicemember wife or husband, regardless of the date of their marriage.
• Section 2 deals with occupational licenses. It authorizes the Secretary of Defense, for five years, to enter into a cooperative agreement with the Council of State Governments that would assist the funding of interstate compacts that avoid the burden of a spouse needing to become relicensed in connection with “a permanent change of duty station” of servicemembers to another state.

The bill would serve an important need for servicemembers, their spouses, and their families. There is no federal law establishing uniform licensing requirements for various professions; the states handle that responsibility. One-third of military spouses work in a field subject to a state licensing requirement, and they are often forced to obtain a new one whenever a servicemember is transferred interstate. Military families also move often, usually at least nine times in an average career.

There is an enormous variety both in the licensing requirements that different states impose and in their willingness to accept a different state’s certification. Recertifying under a new state’s laws can cost a military spouse hundreds of hours of needless education and training, along with thousands of dollars in education expenses and fees, just to practice in a field for which he or she is already qualified in a different state.

The prospect of needing to requalify from scratch can deter servicemembers from “reupping” whenever there is a risk that they will be transferred elsewhere within the United States. Because that risk always exists, soldiers and sailors can be forced to leave the military at the end of their tours simply because they cannot afford to live on military pay. That prospect could also deter civilians from entering the military in the first place. Because America has an all-volunteer army, we cannot afford to let the states impede our military preparedness by imposing onerous licensing requirements.

Congress’s Powers to Protect the Armed Forces from Those Harms

Congress has the constitutional authority to displace state laws creating anticompetitive guilds adopted under the guide of protecting the public welfare. Article I of the Constitution authorizes Congress to create and maintain an army and a navy,REF and the Necessary and Proper ClauseREF empowers Congress to take reasonable steps to prevent the states from interfering with our national defense.REF If Congress found that state occupational licensing rules burdened the ability to travel in interstate commerce, Congress could invoke its authority under the Commerce Clause of Article I as another basis to prevent the states from interfering with military preparedness.REF Finally, Congress has the power to remove state roadblocks to the constitutional right to interstate migration,REF a right protected by the Privileges or Immunities Clause of the Fourteenth Amendment,REF by exercising its power under Section 5 of that amendment, the Enforcement Clause.REF

The PCS Act, however, would not erase all state occupational licensing requirements, even for military spouses. It is a modest measure designed, to borrow a phrase from Professors Richard Thaler and Cass Sunstein, simply to “nudge” the states in the right direction.REF For that reason, it is by no means clear that Congress must approve any agreement among the states to allow military spouses to transfer their licenses, because such agreements would not “enhance state power to the detriment of federal supremacy.”REF Given the legitimacy and strength of the government’s interests and the absence of any affirmative burden that the act would impose on the states, one would think (or at least hope) that it would be difficult to oppose the policies underlying the bill.

Conclusion

It is a mistake to assume that the only way to maintain our military’s strength is to purchase new aircraft, submarines, and tanks. Encouraging people to enter military service and retaining already trained personnel are critical to our ability to deter aggression and overcome whatever we cannot scare off. The Portable Certification of Spouses Act of 2019 is a modest attempt to defend the nation by eliminating a disincentive that the states place in the way of attracting or maintaining well-trained armed forces. Congress has the authority to go much farther and force the states to open their markets to military spouses holding a license in a different state, and such a measure would be a valuable step toward the dismantling of state-created cartels. This act might take only a small step toward that goal, but it certainly is a step in the right direction.

—Paul J. Larkin, Jr., is the John, Barbara, and Victoria Rumpel Senior Legal Research Fellow in the Edwin Meese III Center for Legal and Judicial Studies, of the Institute for Constitutional Government, at The Heritage Foundation.